Lawfare Daily: The New January 6 Reports

[Intro]

Ryan Reilly: Yeah, I definitely is just missing a huge part of this story. And I think that the narrative that has already emerged from this, you know, despite the fact that I think that the headline that they wanted to write was that, like, listen, there weren't any FBI special agents undercover out in the, in the crowd, but instead, obviously the narrative that has been written off of this in conservative media certainly is that like, oh my gosh, look at all these confidential human sources are out there.

Molly Reynolds: It's the Lawfare Podcast. I'm Molly Reynolds, senior fellow at Brookings and senior editor at Lawfare with Quinta Jurecic, a fellow at Brookings, and a senior editor at Lawfare and Ryan Reilly, justice reporter at NBC News.

Quinta Jurecic: One of the things that makes this an intelligence failure on the FBI's part is that everyone knew it was going to happen. I mean, we didn't all know that rioters were going to break into the Capitol, but we knew that something was going to happen on January 6th because everyone was posting about it and Trump had tweeted about it.

Molly Reynolds: Today, we're talking about two new investigative reports on January 6th, and where things stand in the effort to hold individuals accountable on the fourth anniversary of the insurrection.

[Main Podcast]

I want to start us off by talking about first, the Department of Justice Inspector General's long-awaited report on January 6. Quinta, do you want to just give us a little bit of context for this report? What is it? Why did it take so long to come out? Why does it have the scope it does? That sort of thing.

Quinta Jurecic: We've been waiting for this report to come out, I think it's fair to say for three years at this point. It was announced I believe pretty shortly after January 6th that the Justice Department Inspector General, along with a range of others inspectors general across the government, would be conducting an investigation of how the Department handled the run up to the sixth and the day itself.

Most if not all of those other inspector general offices finished their reports in some cases a very long time ago. And so anyone who has seen my and Molly Slack messages knows that at this point it is a running joke that every time the DOJ IG would drop something, we would get briefly excited and then not so excited as we realized that this still somehow was not the January 6th report, but they were kind enough to finally release it. So they came in just under the wire on the, the four year anniversary of January 6.

I was pretty surprised when this came out at how short it was. It is a pretty slim 88 pages for a report from the DOJ IG's office. And it announces right at the beginning that there is a lot that it is not going to talk about. Some of that has to do with the fact that, as I mentioned, other inspectors general got there first. Which I will say, the idea that you don't have to do your homework because somebody else already did theirs is a principle that I wish I could have taken advantage of in high school.

But the other part that's kind of missing here is the portion on what happened in the Justice Department as opposed to the FBI. The report is really focused on how the FBI handled the run up to January 6, and for good reason, and we'll discuss that. But it basically states explicitly, we decided not to look at a big portion of what happened here because there was a criminal investigation and prosecution ongoing.

And it seems pretty clear that that is referring to the investigation and prosecution undertaken by the Justice Department, then Special Counsel Jack Smith in the prosecution of Donald Trump.

It is a little unclear whether or not that portion of the investigation is dead, sleeping, maybe, will it be revived? We don't really know. And it's not a total black box. We do have some sense of what it is that went on in the Justice Department that is not described here, because we know it from the indictment of Trump in the January 6th case, and of course the January 6th Committee's work.

This is, for those who paid attention, essentially the sort of subplot about Trump attempting to get the Justice Department to reach out to state legislatures, particularly in Georgia, and say that DOJ was investigating election fraud, and put Jeffrey Clark in charge of the Department. So that, that failed, but it's sort of a crucial part of the story in terms of Trump's efforts to overturn the 2020 election, and it is not in here at all.

For that reason, I think this is a very odd document in that it's missing, I don't know how, what percent of the story, 50 percent, 75 percent. And then the question of how it handles the remaining 50 to 25 percent, I think is a different issue on which I'm sure we also all have thoughts. But Ryan, I'm, I'm curious what you make of, of the eventual shape that this took.

Ryan Reilly: Yeah, that was a really, really great summary. Yeah, I, definitely is just missing a huge part of this story. And I think that the narrative that has already emerged from this, you know, despite the fact that I think that the headline that they wanted to write was that like, listen, there weren't any FBI special agents undercover out in the, in the crowd.

But instead, obviously the narrative that has been written off of this in conservative media certainly is that like, oh my gosh, look at all these confidential human sources are out there. Like, you know, does the level of detail trickle down into those stories that only a very small portion of those individuals were actually tasked by the FBI with going here and some of them were just there? No, of course it doesn't.

Is there any context about how many confidential human sources there are in the United States of America? No. Is there a context of how many thousands of people went to D.C. and whether, you know, confidential human sources were overrepresented on a percentage based level of the percentage of Americans who are confidential human sources.

And then based on how many people actually went to D.C. and were those numbers wildly off, because if you think about it for a second and you're like, you know, all of these thousands and thousands of people. I don't want to mess up the number, but for some reason, 40,000 is striking to me as people who went to D.C. for this. Does that sound about right to everybody? We'll find out.

But basically what I'm saying is that that number of confidential human sources, when you, when you step back for a moment is not totally surprising for, I mean, you know, at first I was like, oh, interesting, a decent amount. But then, you know, I think the frustrating thing with the narratives that have emerged from this is like the core group that I think you actually need to focus on, if I were drilling down on this is the people who enter the Capitol, who are confidential human sources, who didn't get charged. Those are the only ones who actually really matter, honestly.

And I think there's a lot of distraction or people have purposely created distraction from talking about these people were on the property outside because yeah, no, duh, a bunch of people were on the property outside. They're not getting charged. In fact, it was only in the very early days of the investigation that people on the lawn of the U.S. Capitol, like even had a remote chance of being charged.

You know Brandon Straka is the one that jumps out at me there where there's someone who didn't commit any violence who was charged in the early days because he was like eight feet from the door. But nowadays like that case wouldn't have been charged because they generally only charge people, you know, after the first couple of months, they generally focused on people who either enter the Capitol or people who assaulted law enforcement officers outside.

So I think it is a little bit of a distraction to say that, oh, look at how many of these confidential human sources were on property. Cause who knows what time they arrived? Who knows that the gates were down. Like there, that's why they didn't pursue a lot of these, these cases.

Now, if you enter the Capitol, I mean, there was an alarm going off. There is a police presence. There was a million different signs that you shouldn't have entered the Capitol. And that's why they've been able to prove those cases overwhelmingly in court.

But in terms of just like entering the lawn, that's a tougher one, right? Cause if I went to the outside of the White House right now and the gates had been open that are normally outside of the White House and a bunch of people were inside there, I might assume that that was open. So that's where those cases were like tougher to, to bring in, why the Justice Department didn't ultimately focus on those.

That and the fact that they were just so wildly off on their estimations about how many people actually entered the Capitol itself in the early days of the investigation.

Molly Reynolds: That was a great sort of intro, Ryan, into some of the sort of substantive pieces of the report that I think we're going to talk about.

Before we turn to that though, I want to pose one other kind of general question. Can you put sort of this report in context with other reports that the Justice Department's Inspector General has done in recent years, particularly around sort of the tone, the way it approaches the material, how does it compare to some of the other things that we have seen this particular office get itself involved in?

Ryan Reilly: Well, I'd love to see the previous drafts because I think that there was a huge editing process here at sort of the last minute, and then they had to get it through, you know, the clearance process, right? So that was another hurdle they had to go over. So I think that like they were sort of, you know, to draw the, the Jack Smith metaphor, they were building this report for speed in the end, because they had, you know, there had been a lot of time that had been wasted.

My understanding is that actually most of the delay was because of not necessarily I think it impacted it, but it was not necessarily because of the Jack Smith investigation itself, but it was because of the January 6th prosecutions themselves. And so, once the big ones got over the line.

The big ones, meaning the Proud Boys seditious conspiracy case where confidential human sources were actually an issue at play with those cases. And with the Oath Keepers case, where, sort of the same thing, in fact, there was a confidential human source who knew about this ahead of time that the FBI ignored the tip on didn't do anything with and then testified at trial. And it turned out that he was a pedophile or a child sex offender who had sent this in at some point.

So yeah, I mean, I think that that's the, that was basically the reasoning for the delay ultimately was just this, this notion that there was this massive ongoing January 6th case. But you know, in the edit process, I think that that's what sort of played out because this was supposed to be the Jeffrey Clark report. Ultimately, this was supposed to be the report about why the inspector general was a part of a raid on, on Jeffrey Clark's house.

Quinta Jurecic: And we still don't have the answer to that question.

Ryan Reilly: We still do not. We still do not. There's like some coordination with Jack Smith's team, but we don't know to what extent. Was that before Jack Smith's team? I think that maybe that Jack Smith's team already announced at that point. I forget the exact timeline of when Jeffrey Clarke's home was searched and we saw that, you know, video of him in his, his dress shirt and underwear.

But, you know, that was, I think what this report was originally supposed to be, is like who inside the Justice Department was assisting in attempt to overthrow the United States government was, was, was really supposed to be the focus of this report. And that's not ultimately what came out of it.

Instead, what we got out of it is a report that, you know, I'm sure you'll have a lot of, I'm fairly certain you'll have a lot of Republicans talking about, you know, the confidential human sources thing, because that's just been an obsession for, for years now.

And you have members talking about FBI ghost buses and busing people in and just sorts of all these bizarre conspiracy theories. And in the end, what you end up is with a report where the government dumped a bunch of resources into researching this sort of really fringe side issue without getting to the core and the heart of the matter, which was who inside the Justice Department was assisting in an effort to overthrow the 2020 election.

Quinta Jurecic: So shifting then to the portion of what is covered, setting aside the issue of the confidential human sources, I think the sort of remainder of what's there is really about one of the questions that I certainly have been obsessed with since the beginning, which is how in God's name did the Bureau not see this coming?

And there are a lot of very complicated reasons for that, which this provides a little bit more insight into, and we can go into those. I think that I will say my sort of top line takeaway, and Molly this goes to your point about situating it in context, is how gentle the tone of the report is.

You know, when the IG's office announced they were going to put out this report in the days after January 6th. My first thought was, you know, oh wow, that's really going to be a barn burner. Because anyone who has followed the, the oeuvre of Inspector General Michael Horowitz knows that he loves to just go in there and slash and burn and really, really criticize the Department.

There was a string of highly, highly critical reports coming out of the IG's office regarding the Department's handling of the Clinton email investigation of the Russia investigation of the Comey memos. If anyone remembers those way back in the day where the language, you know, was pretty, it was pretty harsh. He took a, you know, a harsh review of how the Department had handled itself.

And so opening this document up, I was honestly prepared for similarly stark conclusions about the Bureau's failings. Particularly because, you know, I've heard multiple former FBI officials call this, you know, one of the worst, if not the worst intelligence failure since 9/11, possibly worse than 9/11. And the language in the report is just not, that is not what it sounds like.

There are certainly, you know, there are criticisms made. And I think some of the, the evidence there is, is pretty damning. But the overall takeaway, it kind of ends up with, you know, oh yeah, you know, the FBI, they did a generally okay job. They screwed up some things, you know, better luck next time. I'm, I'm joking a little bit, but overall, it's very, very good gentle compared to the sort of excoriating tone that the office has previously taken.

And I, I really don't know what to make of that. I mean, maybe it's a byproduct, Ryan, of some of the sort of issues that you're flagging in terms of the strangeness of what they were doing with the Clark material and then this issue of the confidential human sources. But I was, it's pretty baffled, honestly, by some of the ways that the report is constructed and by some of the things it leaves out as well. I don't know. Am I being too harsh on Horowitz?

Ryan Reilly: I, you know, it's, it's tough to say because I think that what I go back to is that the January 6th committee was supposed to do a lot of this and they made the political decision to instead focus on Trump.

And so you know, 2020 being hindsight, although at the time I, I did think that that was a missing component and, and was, was wondering why that was something that wasn't focused on because that's what the report was supposed to be about. And that's what they set out to be. And they set up a whole blue team to do that.

And then in the end, sort of, you know, the, sort of the big wigs, the people at the top of the chain, you know, thinking Trump was this massive threat decided that that would be a distraction that the American people couldn't walk and chew gum at the same time. And so that's what they chose to do and sort of left these issues sitting out there, this like clear huge intelligence failure.

But yeah, I mean the stuff with them missing the canvas like the stuff that they did talk about like these basic failures I mean it just like You know, it just, it echoes from a report 20 years ago, right? Like you need to talk about January 6th and then you talk about the intelligence failure, as you mentioned, like the biggest intelligence failure since September 11, arguably larger because it was just out in there in the open. And somehow like everyone on the internet knew it, but the federal government didn't, is, is massive.

And they didn't, they didn't really drill down on that as much as I think they probably should have. Because they're just like these huge, huge systemic problems that that identified and there was not a deep inquiry or investigation into those broader topics that could prevent this from happening in the future.

I mean, some of it was just like really obvious, like, you know, stuff. Like, hey, maybe next time we switch our procurement service, we should have some overlap so there's not like, you know, so that you're not shutting down the tool that you have used for years on one day and then starting up with a brand new tool like takes people a little bit of time.

Quinta Jurecic: Which, for listeners who are not familiar, is literally a thing that happened.

Ryan Reilly: Like, that one shouldn't have been too tough. And in fact, that was identified contemporaneously by the Washington Field Office, and that was more of the FBI Procurement Office that probably didn't think that one through, or what have you.

But I, you know, some of these go to a much deep, much deeper issues within the FBI, which I think, you know, the one thing that I always go back to, and it's a quote that it's a joke that, you know, James Comey made 10 plus years ago now, but like how people want to smoke pot in the FBI. Like, you know, and like, and I, people always say like, no, I'm, you're, you know, I'm being facetious or joking about it.

But like, literally, imagine having technological skills and making the choice to, to make your quality of life worse, and I say that on a financial level, right. Like you're making this huge sacrifice if you have these technological skills, you're making a huge sacrifice to go within the FBI because, hey, you know, if you went into the private sector, you're going to get paid a lot more, you're going to live wherever you want in the country. And, you know, you don't have to be forced to live somewhere you don't want to live.

Other jobs might care about what your spouse does, because I think the FBI is still set up in this 1950s mentality where all that matters is your job. And, you know, you know, in the 1950s, it was whatever your wife was doing, it doesn't really matter if she was working at all. And nowadays, you know, that's not the world we're living in anymore.

And this idea that the FBI can just, you know, dispatch anyone, so wherever they want to in the country is not, it's not a recipe for a successful organization. And just the salary levels are not necessarily where they need to be. And just the training I, it's not as the, like, I think that that's also just a big failure that they could have gone into. You know, there's been reports for decades now about the FBI falling behind on technological skills.

But there's this huge mismatch between the Hollywood portrayal of the FBI and what people think the FBI can do and maybe the actual reality of the FBI, which is that, you know, there are a lot of good people there. There are a lot of hard workers there, but like, there's a lot of structural failures there. And there's a lot of things that do need to be changed if we're going to take on 21st century threats.

Molly Reynolds: Yeah, so we've covered I think a couple of the sort of specific points already, but I want to dig into this question of the FBI not canvassing its field offices a little bit more extensively.

So first there's the question of sort of why didn't it do so and what does the report tell us about that? And then there's a second question about the degree to which for a while after January 6th the official line was, no they had done a full canvas. And that sort of the kind of etymology of how that line makes its way first from a set of talking points and eventually into testimony both before two Senate committees before the January 6th Committee.

So maybe Quinta, I'll come back to you first to talk a little bit about this and then we'll go over to you, Ryan.

Quinta Jurecic: This is sort of the biggest failure that the report points out. So when we're talking about canvassing, what we mean is that the Washington field office failed to reach out to the field offices across the country and say, hey, can you ask your confidential human sources for information about, you know, what 6th and then send that back to us? Basically a request for whatever you got on January 6th.

And somewhat mystifyingly, the Bureau didn't do that. And I say mystifyingly because, as you say, Molly, one of the weird things about this whole story is that not only did the Bureau in the days after January 6 tell Congress that it had done that. But that, according to this report, multiple former officials, when they were being interviewed, thought that it had done that and didn't realize that it hadn't.

It was not totally clear to me if anyone at any point made the kind of affirmative decision, no we're not going to do that. My impression, and I may be a little bit turned around here, I mean it's difficult to figure out because this is a relatively short report describing the workings of an incredibly big and complicated bureaucracy, and we're kind of peering through a keyhole a little bit.

But it seems like what happened is that the, the Washington field office essentially felt that they were getting too, too much information about material that was not 100 percent in scope. Along the lines of, hey, there's going to be a rally on January 6th. And there's a very funny email that's reproduced here where they essentially said, you know, why are you guys sending all this stuff to us?

And so what they do is they send out this email that basically says, when you're sending us information, can you please send us more specific information about, you know, specific threats? It seems like the people who sent the email, possibly, and certainly the people above them, understood that to have been functionally the canvassing that we're talking about. But the people on the receiving end, the other field offices did not understand it that way.

And so didn't send things in, which if you read the actual email, certainly the tone is, please stop spamming us. And so there's, there's this real disconnect that happens where the Washington field office thinks it sent this canvassing request, or some amount of people there think it sent this canvassing request. The higher ups seem to think that. But the other field offices don't think that and aren't sending things in.

And so, again, I mean, Ryan, to your point about, you know, this is a big organization, it's, it's a little bit behind the times. Some of what you're seeing here is just, you know, something that people have worked in any big organization have experienced, which is that, you know, somebody sends an email and it's not totally clear what it is that you're supposed to do and something ends up getting dropped.

What's, what jumped out at me, I will say, and I think this is kind of a thread that I at least saw throughout the report, is there's no point at which anyone says, hey, let's not prepare for January 6 or something like that. But there's also no point where anyone says, hey, we really need to be worried about this. Like there's no one above taking initiative and saying, okay guys, we need to buckle down. This is a big deal. You know, all hands on deck, right? Send out the canvassing request.

And so what you get is a lot of people who are kind of like doing things like 75 percent of the way in the hope that the other person will sort of see what they're getting at and maybe pick up the other 25%, but not actually saying, I need you to do this. That there's this kind of, and this is, this is me theorizing more, but unwillingness to be the person left holding the bag if, for example, the president finds out that maybe you've been looking into the activities of his supporters.

So there's this kind of, there's a level where everything is kind of operating on like implication and nobody quite wants to say it out loud. And what that does is that it means that it's very, very easy for everything to slip through the cracks because there's no one who's really cracking the whip and saying, hey, we got to get on this. Again, Ryan, I'm curious. I keep going back to you to check me on my takes, but I'm curious what you think of that.

Ryan Reilly: That was a great take a hundred percent. Yeah. No, like that. I think that that was if I had gotten that email I would be like, oh clearly they don't want me to send anymore. Or at the very least I would be like, well, this is an additional burden I am not going to do this unless it's like really super serious and even then it'll be you know, like if you impose an additional bureaucratic hurdle on people they're not going to do that.

You know what we are supposed to learn from the 9/11 report was that information sharing is, is key. And you know, everyone should be having the same info because you can make connections that you can't. I mean, that's really ultimately why the sleuths have been so much more successful than the FBI and identifying people because the FBI, the way it is structurally set up is not built for the internet era.

It's not built for easy information sharing across, you know, there are all these various little fiefdoms, you know, different parts of the country work very much so differently. There's not just the ease of sharing that there should be. And there's not, you know, easy communication tools. And the other thing is that everyone's every utterance is being permanently recorded forever. And so you can't have these like honest discussions because, you know, they can do their, their red cell efforts and write it in really bureaucratic boring language that like takes that, that doesn't make it compelling to read.

But if you were to look at this, honestly, what they're doing is they're focusing all of these individual trees and creating a bunch of bureaucratic hurdles and based trading a bunch of make work, that's not going to actually have any benefit, when the actual threat was like clearly the fact that like millions of people thought that the election was stolen. Thousands of them were coming to D.C. And the rhetoric around it was crazy.

Like that's, that's the threat there. It's not like, oh, picking off this one individual actor, did they cross this threshold of whatever sort of thing behind the scenes? And this is all an effort of starting to set up a rant, a forthcoming discussion about the First Amendment considerations there.

Molly Reynolds: So we'll get to that in a second when we get to the part of the conversation where we cover some more stuff that's not in the report. I do wanna touch on one other thing that is in the report. So so far we've talked about the degree to which the FBI did not canvas its field offices. Ryan gave us a great overview of the report’s discussion of confidential human sources and the degree to which it sort of rebuts a set of conspiracy theories about that.

The other thing I want to talk about and again maybe I'll go to Quinta first on this because I know this is the thing that's been, another bee that's been in her bonnet for a while, which is this question of confusion among a set of federal agencies, principally DOJ and the Department of Defense, about who was the lead federal agency on January 6th and then a set of operational decisions that flowed from that.

So, Quinta, can you just sort of, again, for listeners, give us a sense of like, what's the problem here, and do we learn anything about the problem from this report?

Quinta Jurecic: So I believe that we first learned about this actually from a report from, I forget which Senate committee, it might have been the Rules Committee or Senate HISCAC?

Molly Reynolds: They did an investigation together because sometimes Senate committees are capable of playing well with each other in a way the House committees are just not. But that's a topic for another day.

Quinta Jurecic: Thank you to the Senate. Yeah, so, so there was an investigation that came out of those committees that basically said part of the problem was that no one was quite certain which agency was in charge of preparing for January 6th.

And one of the things that that report said that has been kind of mystifying is that basically everybody else said that DOJ had been designated as what is called the lead federal agency in charge of preparing. Except that DOJ, when they were asked, said no we weren't. And this has always been kind of puzzling.

I think this report honestly does not offer a huge amount of clarity on that matter, although it does provide a little more detail that essentially there is a specific conference call between the Defense Department, the Justice Department, and I believe DHS and the Interior Department are also on it, where the Defense Department essentially says, okay, you know, we need a lead federal agency. We understand that the White House has designated DOJ as the lead agency that's going to be in charge of all of this coordination.

And then the report says, however, DOD and DOJ officials were not in agreement as to whether DOJ had agreed. And it quotes Jeffrey Rosen, who I believe at that time was the acting attorney general, essentially saying, yes, Milley said that, but I never agreed that I was going to do it.

And it really seems like for whatever reason, there was just a profound. breakdown of communication here. Where you know this isn't like the smoking gun that allowed January 6 to happen but I do think it's, it's just another one of these things where you see how there are all of these little areas, like with you know, the inability to get the National Guard on the scene for hours where you're like. Where communication kind of breaks down, it's not totally clear who's driving the bus.

And I think this, this report provides more detail there, but it doesn't, to me, at least satisfactorily answer that question of why, why did this happen? Although it does, it is perhaps another data point in sort of the story that I'm trying to tell here of like, no one wants to be the one left holding the bag.

Molly Reynolds: So we've talked a fair amount about what is in the report. Let's talk a little bit about what's not in the report. Two things I want to touch on here. And first, Ryan, I'm going to come back to you on something you mentioned earlier.

One point you described this report as this was supposed to be the Jeff Clark report. So can we talk a little more about what's not in this report in terms of what was actually unfolding at the Department of Justice in the days up to January 6th and then, you know, on the day itself?

Ryan Reilly: Yeah, and you know, this was something that I kind of, kind of didn't occur to me until I myself tried putting back together the timeline of what was happening in those days in the lead up to January 6.

And, you know, it's relevant to what we were talking about before DOJ not realizing they were in this, this lead role. Because there was something else happening within the Justice Department that might have been slightly distracting in a couple of days before January 6. And it was literally not until I sat down and like put this together for, shameless plug my book, Sedition Hunters, that I recognized what was, what was happening, right?

And I was like, oh, okay. So this event happened on a Wednesday and over that weekend was that crazy moment where Jeffrey Clark was like, even on the calendar at the White House at some point as the acting attorney general that this was all in motion. This was happening.

And there was this incredible meeting at, at the White House which I want to, I believe was on the, the Sunday night where it was basically a bunch of people that Donald Trump had appointed to be Justice Department officials saying that they would quit rather than work under Jeffrey Clark, who, you know, thought there was the potential that the election was stolen via smart thermostat, or at least wanted to explore that question.

And, you know, I would say subsequently also didn't realize, you know, that on Twitter when he used to start a tweet with an at sign that it wouldn't get as much traction as before, just to like set the level on his level of technological sophistication.

What, you know, that's what the situation that, that it was in. This was someone who was an environmental lawyer who was clearly susceptible as millions of Americans were to these lies about the election. And he was someone who was willing to do what the president wanted at that point. And that's who the president wanted to put in charge.

And that could have been, if that night had gone just slightly differently, like a Watergate type moment, right? Where that could have, you know, instead of the Friday Night Massacre, it would have been the Sunday Night Massacre. Where there was literally like a letter written about how Jeffrey Rosen, which I didn't read until years later, it was like a resignation letter for Jeffrey Rosen and a bunch of other people.

And like, you could tell it was written for history, like a little bit like, you know, like, it was just like, this is my moment for the people. I'm going to take my stand and, and do what I want. But you know, it wasn't that tough of a decision. I don't think at that point for folks to make, because literally you're deciding like, hey, is the market going to reward someone who tries to overturn the election?

Or, you know, the way I sort of described it in the book is that the, the morally correct decision was also the financially advantageous decision. They aligned perfectly at that point, because you're giving up two weeks of a paycheck and to go down in history as like this hero, right? So it wasn't even that easy, that wasn't even that tough of a moral call.

But nonetheless, that's what was happening inside the Justice Department. So it's easy to figure out like why they might've been distracted. And, you know, when they're literally on the phone call for planning purposes, and at that same time, then Jeffrey Clark is like, hey, let's go meet upstairs. And somebody's packing their office. And, you know, the deputy attorney general is literally taking stuff off of his walls. Because he thinks that, that he's going to be, you know, marched out of the Justice Department building by somebody from the White house.

So that's the sort of chaos that was happening behind the scenes in the days before January 6. And, you know, then you get that email late at night on a Sunday. I'm guessing there's a little bit of catch up to do on that Monday. So that brings us to the fourth and then the fifth, and then there we are on the sixth, right?

So there just wasn't a lot of time for anybody to make sure that all the i's were dotted and the t's were crossed in lead up to January 6 because of this internal crisis at the Justice Department. That's what wasn't in the report.

Molly Reynolds: So, Quinta, now I want to ask about something that wasn't in the report about which I know you have thoughts, which is a robust discussion of claims made by a number of high ranking FBI officials about the Bureau's inability to review publicly available social media information as part of their investigation. Talk to us about sort of that issue and what is not addressed in this report.

Quinta Jurecic: This goes back to something that Ryan was saying earlier about, you know, one of the things that makes this an intelligence failure on the FBI's part is that everyone knew it was going to happen. I mean, we didn't all know that writers were going to break into the Capitol, but we knew that something was going to happen on January 6th because everyone was posting about it and Trump had tweeted about it.

And so when FBI Director Christopher Wray is kind of hauled in front of Congress in the weeks and months after the 6th, one of the things he says is, well, you have to understand, we're limited in our ability to look at and sort of save for future reference public social media posts because of First Amendment restrictions.

I have a very long, very dense Lawfare article spelling out why I think this is arguably inconsistent. Not arguably, it is inconsistent with a pretty clear guidance that is set out in FBI guidelines, what's known as the, the DIOG. I forget what the acronym precisely stands for.

The short version is that Wray is, seems to present to Congress a level of difficulty that is just functionally not actually there when it comes to the FBI's ability to look at, you know, online posts that are publicly available because of First Amendment restrictions.

You would think that that would be relevant to the, the intelligence failures that this report is going into, but it doesn't really feature at all. It kind of shows up here and there, where there are references to, you know, the Bureau reminding people about First Amendment restrictions, right? Concerns about getting tips that didn't speak to violence because this is First Amendment protected activity, that kind of thing. But it's, it's not addressed head on.

And, you know, okay, fine, like we all have different priorities, but it did strike me as odd because no one, as far as I know, has really done a deep dive into, you know, is, was Wray's understanding the understanding of the Bureau guidelines that was communicated to people within the agency? Because if so, that seems like a potential problem when we now have, you know, this is an agency that's continuing to be responsible for responding to, you know, potential domestic terror.

It would seem relevant to me to, to look into how the Bureau is interpreting its own guidelines, how it understands its own authorities and the relationship between its authorities and the First Amendment, especially, you know, in an environment increasingly shaped by, by social media. But we really just, we, we've never gotten an answer there. Congress just has not really been interested. I was hoping that the IG would be interested and they don't seem to have been either.

I found this particularly odd, I will say, because there's, because of one particular note. So one of the examples, I think, of the kind of zeroing in on the trees and completely missing the forest that you mentioned, Ryan, is this obsession with making sure that the Bureau was tracking domestic terror suspects who were going to D.C.

They get very, very invested in making sure that they have eyes on all these people traveling to D.C., which makes sense, certainly, if you're concerned about potential violence. But the way it said on the report, it seems like there's a sort of very narrow focus on that to the exclusion of basically all other intelligence activity around January 6th at that time.

And this jumped out at me because the argument that Wray was making in front of Congress is essentially, look, we can't, you know, look at tweets because of First Amendment restrictions where we need to have an open investigation in order to have the authority to look at those tweets and we can't do anything if we don't have an investigation. Now, bracket that, I think there's a very good reason to think that that's actually not true.

But even accepting that Wray's presentation is correct there, then there's this question of, okay, there weren't any open investigations that could have provided you with a hook to look on Twitter. And this had always seemed odd because Wray said, when he goes in front of Congress, he says, you know, oh, we have over a thousand open domestic terror operations, you know, investigations. Again, not one of them allowed you that hook. Okay, fine.

I think it gets even weirder with this report, because now we know not only were there, I think he said, 1,400 open domestic terrorism investigations. We now know that some portion of the, subjects of those investigations were traveling to the Capitol on January 6th, and that the Bureau was aware of this because they were tracking them.

So in none of those instances, there was enough to provide any kind of a hook to like, look on Twitter, look on Parler, look on Gab, like none, zero, really? And again, there are a lot of questions here, right? Like, I don't know what kind, how much of a hook you need, right? Can you only look at like one Parler post if you have a hook? Can you look at the whole chain of comments? I think there are real questions here.

But to me, it makes the argument that the Bureau lacked these authorities even harder to believe given that clearly there were open domestic terrorism investigations that were relevant to what was happening on January 6th. That's my rant.

Ryan Reilly: Yes. Very good rant. I like, yes.

I, and I think also you gotta look at, like, the history of what has happened to people who spoke honestly about their feelings about the threat that Donald Trump posed within the FBI. Like, you look at, you know, when we were doing the Crossfire Hurricane IG report, you look back to that one. And like people sent like, you know, a little message that for some reason they didn't recognize was being like permanently stored by the FBI, but they were sort of had like, you know, jokes or made casual water cooler talk over an FBI platform.

And then suddenly they're getting hauled before the inspector general because they made like some like, you know. And that wasn't because they act, that actually influenced the way that they do their job. People have the ability to separate their personal opinions or their snark or their, you know, sort of their little rants from the way that they do their job. That's something that you are able, able to do and separate and recognize that here's how the law applies. You know, but it's the appearance of impropriety is what they really focused on in that report. And I think that that's something people have been sort of running scared of ever since.

And the thought process was, oh my gosh, you got to the end of the Trump era. Here we are. We're almost, we're almost on the, if you, you know, if you're within the FBI, first time around. You're like, okay, we got to the end of it. Sure, he's saying a bunch of crazy stuff, but like, am I going to stick my neck out at the very end here and like, talk honestly about the implications of what that's, that could mean when, you know, okay, all the signs are pointing towards that, you know, we're going to have an inauguration and this isn't something I'm going to have to be worried about. But also probably the House or House Republicans are going to be super interested in this down the line.

Yeah, I mean, I think that that people made decisions based upon the, the world they were living in. And also just, I, again, I, I always go back to the vacation thing, but it's a real, it's a real thing. Cause I think like 2020 was this awful year, right? Like everybody desperately needed that break. And the thing, one thing that I had completely and totally forgotten about until I went back into the timeline was that there was a bombing in Nashville on Christmas day, right?

And the FBI surged all these resources to it because that's what they do. They're good at these things, but they, you know, so it wasn't as though people were taking two weeks straight off. It was a bunch of people from a bunch of field offices flooded, flooded the zone. Everybody was working this bombing during the holidays and interrupting time with their family, right? For this purpose, right?

So if you're someone who gets assigned to that purpose and that's a domestic terrorism case. And then you're coming back, it's like, okay, yeah, let me take a few days off in early January instead, and like just the logistical hurdles that you have to deal with around the holiday. And that was honestly, for me, the first thing that I thought of when I saw this, like what happened in New Orleans and what happened in Las Vegas on New Year's day is that that was during the most vulnerable period.

Now, of course you should say, we don't know that there was any FBI failure there yet, but it would not totally and completely surprised me were we to learn down the line that the FBI had at some point received tips about either of those individuals.

Molly Reynolds: While we're on the topic of the FBI, I do want us to talk a little bit about another document that was released recently in the January 6th investigation space, which was a report from the Committee on House Administration sort of group led by Barry Loudermilk, member of Congress.

Loudermilk has been leading basically a House investigation into the investigators, as has been referred to, an investigation of the House's January 6th investigation for the past two years. I think I saw Kyle Cheney point out this morning that they have been investigating the investigation longer than the investigation itself happened.

But just before Christmas, Loudermilk's panel put out a report on the investigation that sort of teased the existence of a second document which came out more recently, specifically on the FBI's failure to identify who planted the pipe bombs outside the Republican National Committee and the Democratic National Committee on January 6.

I want to sort of talk about this other particular FBI failure in a second, but Quinta, can you first give us a little more context than I just did? Like, how should we think about what Loudermilk has been up to? How do we situate this, like, investigation of the investigators in the broader discourse about Congress, Congress's efforts, the government's efforts more broadly to hold people accountable for what happened on January 6th?

Quinta Jurecic: It's a great question, and I wish I knew the answer, honestly. This, this has been a very odd little investigation. So I think the pipe bomb report is technically the third report. There was an initial report, then there was a second one that came out, I believe late this fall or early this December, and now we have this pipe bomb document.

And certainly the overall posture is, you know, investigating the investigators. The, there's a real tone in the, the first two reports of basically sort of trying to make the argument that the committee is illegitimate. There's a lot of complaints about how Liz Cheney wasn't a real vice chair. There's some complaints about the committee allegedly deleting a bunch of material.

Molly Reynolds: Yeah, and these are particularly the parts about the committee not being properly constituted will be really familiar to anyone who, for their sins, spent any time reading any of the court filings in any of the cases that challenged the January 6th Committee's subpoena authority. That part of it is sort of well trodden ground for the objections that Republicans had to what that committee did.

Quinta Jurecic: Right. Well, so, and part of that has been this release of videotapes from the Capitol on January 6, which, Ryan, I'm actually, I'm curious for your thoughts of to what extent that has achieved what House Republicans might have thought it would achieve versus provide more fuel for investigating, you know, for sort of public open source investigations. So that's, that's one thing.

But then what's interesting, I thought, in the pipe bomb report is that there actually is like a fair amount of substantive information in here about a portion of the January 6th story that has always been a mystery, you know, they still have not caught the pipe bomber. And it appears that the FBI maybe interpreted this as a little prod in the back because the day after the report came out, the Bureau released more information about the bomber and say, actually, you know, we have this person's height and shoe size, please help us find them.

So we do, thanks to Loudermilk, have a much fuller picture of where things stand in terms of the bomber. And it seems to have really pushed the, the Bureau, or pushed the Bureau a little bit on an issue where, as we were mentioning earlier, the January 6th committee kind of decided not to, to bring its focus.

So there's, there's sort of a strange mix of feeding red meat to the base and actually producing valuable information, although perhaps not valuable in the way that followers of Donald Trump might have anticipated or wanted.

Ryan Reilly: I loved the surprised tone in your voice upon stating that there was valuable information in a report that came out of Barry Loudermilk's committee. I was surprised too, I will say.

There was substantive information in that report and that's not to disparage in any way the, the work that they've done on Mr. Coffee Guy, who is the individual that they I've said that the FBI should have investigated for setting up the gallows outside of the Capitol on January 6th.

They've done that investigation. It was based off of sort of a right-wing thing about, well, what's the FBI doing about this? Did that report mention, for example, that there's no core criminal offense for setting up a prop, a political prop, not, that's not inside of the Capitol? That there's not an actual criminal statute that would in any way apply to that sort of behavior or that they haven't focused on just general people who were far away from the Capitol. No, of course it didn't right but it did gin up a lot of a lot of articles.

And that's a lot of what I think these reports have been formatted to do is just to generate attention and fuel conspiracy theories. And that's what they've done. It's a little bit of like a flood the zone type of strategy that I think that they're ultimately using here. And that sort of ties into the footage because, you know, one of the things the sleuths have really, have, have really been bothered by because they're some of the only people who have bothered to look at the thousands of hours of boring, mostly surveillance footage that the house Republicans have produced is that they've missed all of the key moments, right?

Like for whatever reason, I don't, I don't know their intent, but what I do know is that the product that they had had have put out is all of the most boring footage from January 6th that has no actual relevance. And any of the violent scenes of like, they have a few of them in there. I don't know if that was, they escaped and got through by accident. I don't, you know, again, I don't know their intention, but what I can tell you is that like the most, the footage where that would have been the most compelling is not the footage that they have released.

And instead, what they have happened, they've happened is dumped a bunch of footage on there that then people on Twitter have then dissected not knowing anything about and then posted memes about. And then members of Congress, including Mike Lee, have then reposted that. And we've all wasted a bunch of time and energy, and I mean, go on, money, what have you, talking about complete and utter garbage nonsense that just doesn't make any logical sense whatsoever.

And that's what, that's what has happened. So as a result of this, they've put out things and it's like, oh, is this person flashing a badge? No, that's a vape pen actually. And that person's sitting in jail for sort of six years now, but thanks for, thanks for your time and service. Like that's, that's what we've been working on for the, like, there's just been so much wasted time on conspiracy theories. And it's just kind of astonishing that this is where we're at because there's not a, there's not like a shared reality in America.

Instead, we talk about nonsense from people who don't understand things on the internet. So that's my short version.

Molly Reynolds: No, I mean, I think it's a, it's a really important point and you know, when I think about the degree to which we've learned anything from these hours and hours of security footage, I think that for me, the one important new thing was uncovered by a lot Capitol journalist Jamie Dupree, who tracked down sort of the, the path that the fake electors took, the fake elector paperwork took from Mike Kelly's office to an attempt to be delivered to the Senate parliamentarian. And that's, that's a consequential thing that we now know more about, but it's one thing out of all of that footage.

I want to ask one kind of higher level question before we wrap, which is about sort of how should we think about the value of different kinds of investigations. And so, we have this Inspector General report and we know, we talked about this, that the Inspector General kind of didn't do or at least didn't publicize certain parts of their investigation because of the way that it interacted with the criminal investigation.

People left government and did not have to be responsive to the IG in the way that they would have had to be if they were still in government. In some ways that's an argument for having a congressional investigation, but we also see the promises and pitfalls of congressional investigations.

And so, Quinta maybe I'll start with you and then go to Ryan and just ask for your kind of concluding thoughts on, as we sort of approach the fourth anniversary of January 6th, as we kind of move out of this period of, quite likely, move out of this period of active criminal prosecution, that sort of thing, like, how do take stock of the various tools that Congress and the government or broadly have used to try and investigate what happened?

Quinta Jurecic: I don't know. I think that the January 6th committee, I will say, I think comes out looking the best in terms of, you know, understanding the challenge for what it was. And also understanding, Ryan, to your previous point, the need to do something new to communicate in a really fractured media environment in terms of the you know, primetime broadcasts, sort of rethinking the format of a congressional committee investigation.

At the same time, as you also point out, Molly, you know, there are limits unfortunately, given the current state of the jurisprudence on Congress's ability to force compliance with subpoenas. And the committee made choices based on its assessment of sort of the political realities and of the time crunch that I think really limited its ability to really dig into some of these major issues like, you know, like the pipe bomb, like the First Amendment concerns.

I do worry that we've kind of ended up in a situation where everyone feels like everyone else did the part that needs to be done. And you sort of see this very literally at the beginning of the IG report, where they basically say, oh, well, there was a criminal investigation, so we didn't do this. Oh, well, these other, you know, inspectors general did this investigation, so we didn't do that.

And, you know, look, if in a month there's, you know, Jack Smith releases a final report, as provided for under the special counsel guidelines, and that has further information, or like criminal referrals, or something like that. And then, the DOJ IG's office picks things up again and starts looking back into it, then I will feel very differently.

But I do now feel like if you look at that and then you look at kind of other congressional committees, maybe turning to what the January 6th Committee did and saying, you know, okay, great. They did January 6th now, you know. We don't need to look into, we don't, you know, the Judiciary Committee doesn't need to dig into what happened more at the FBI. We don't need the Intelligence Committees to dig into the intelligence failures here.

That there's a desire to kind of like, move on, that is maybe not helpful, whereas if there had been more of an understanding that what the January 6th Committee was doing was one piece of a much, much, much bigger puzzle, that would have been a healthier outcome. I, I realize what I'm asking is for all different parts of the political and governmental machine to be singularly focused on investigating January 6th, which may be a bit too much to ask.

Molly Reynolds: Before we hear hear from Ryan, I'll just say I would say to listeners that Quinta wrote a really great piece making a more robust version of the argument that she just made and published it the day before election day. So, it got sort of lost in in the great shuffle of the first week of November 2024, but I would I would encourage you all to check it out. Ryan over to you.

Ryan Reilly: Yeah, well, Quinta stole my, my points about the media environment, so, and made them much more articulately than I would have, so now I have to come up with a secondary answer.

But yeah, I mean, I do think that that was a big, that was a big thing, is like, you know, the, the, I think Daniel Jones, who wrote the torture report, basically, or helped write the torture report, has spoken about this too, Like, you know, the torture report this that the Senate put together, it was something that everybody had on their shelves, but nobody read, and Americans don't read a lot, so. That's the fundamental core problem. So banging people over the head with information in the simplest, quickest way possible is really important.

And I've made the joke before that, like, you know, the inspector general really needs to get into TikTok and just start, you know, making these videos to get things over, over the, like to get things to break through to the public sort of jokingly.

But I think that, you know, getting information across in the most compelling way possible and making it in the simplest form possible that people can understand very quickly without reading a dense report is, is really essential and that's somewhat of a media problem and a government problem. Because, you know, people are very busy, people are very tied up in their own lives and, and, and have limited time to absorb information and they're getting so much incoming information that it can just be way too much for them to absorb.

But yeah, I don't know what happens in the, in the future in terms of the inspector general reports. But I will say, you know, we're going into a time when there could be some of the same issues that were supposed to be examined in terms of Jeffrey Clark's behavior. Once again, that's what we're walking into.

We're walking into an administration where the incoming president has made very clear that he wants people to act in a certain way. And has made clear that he has enemies that he wants them to go after. I wish that that report was out. I wish that that would have served its value to the public in examining these issues and, and making those bounds in those lines, crystal clear about where people within the Justice Department, what they were required to do under their, the, the oath that they took to uphold the U.S. Constitution.

Molly Reynolds: All right, Ryan, Quinta, we're going to have to leave it there. Thank you both.

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